Big Tech couldn’t target children online with impunity, under bipartisan Senate bill
Samantha-Jo Roth
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In a bitterly divided Congress, expectations are low for enacting bipartisan legislation. But one matter, based on a bipartisan consensus that social media can be harmful to children’s mental health, has a shot of its legislation becoming law.
Sens. Marsha Blackburn (R-TN) and Richard Blumenthal (D-CT) see an opening to make the tech industry factor minors’ mental health and well-being into its business models rather than exploiting their vulnerabilities. It’s an effort in earnest on Capitol Hill after Facebook whistleblower Frances Haugen shed light in 2021 on internal Facebook studies about Instagram, the photo-sharing site it owns.
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Per Haugen, Facebook research showed nearly one-third of teenage girls said that “when they felt bad about their bodies, Instagram made them feel worse.” And “14% of boys in the U.S. said Instagram made them feel worse about themselves.” Another study found 6% of teenagers who had suicidal thoughts connected them to Instagram use.
President Joe Biden, in his State of the Union address, highlighted the need to protect children online. It was the second time he’s called on Congress to act. It’s time, Biden said, “to pass bipartisan legislation to stop Big Tech from collecting personal data on kids and teenagers online.”
Blackburn and Blumenthal, an unlikely bipartisan duo, recently introduced a revamped version of their Kids Online Safety Act. The legislation would require social media platforms to give parents and children more tools and safeguards to prevent and mitigate content promoting things such as suicide, self-harm, sexual exploitation, or eating disorders.
The bill would, among other things, require social media companies to provide options to protect the information of minors, opt out of algorithms giving recommendations, and shut off features that can be addictive. It would also require the social media giants to participate in annual independent audits, examining their risks to minors and requiring them to set the strongest privacy settings on default for children.
The legislation would also mandate social media companies implement controls for users, such as options for limiting screen time, restricting addictive features, and limiting access to user profiles. The controls would be set by default to the strictest settings for users younger than 16.
“Our bill provides specific tools to stop Big Tech companies from driving toxic content at kids and to hold them accountable for putting profits over safety,” Blumenthal said in a statement provided to the Washington Examiner. “Record levels of hopelessness and despair, a national teen health crisis, have been fueled by black box algorithms featuring eating disorders, bullying, suicidal thoughts, and more.”
Last Congress, the bill passed unanimously out of the Senate Committee on Commerce, Science, and Transportation. It was not included in the massive year-end spending bill and did not receive a floor vote. Blackburn believes there’s a renewed push to get this legislation over the finish line.
“This is the year that we will see some success with this,” Blackburn said confidently during an interview with the Washington Examiner in her Capitol Hill office. “These parents that we have worked with and teens that we have worked with, they had hoped that we could get this passed by the time school was out. Now, they’re saying before we go back to school in the fall, let’s have this signed into law by the president so that parents can have some recourse.”
The senators made a few changes to the bill — the text limits the duty of care requirement for social media companies to a list of specific harms to mental health. There are also tightened rules around platforms’ data collection. In addition, there are added protections for services, such as the national suicide hotline, LGBT youth centers, and substance abuse groups, to ensure they aren’t hurt by the bill’s guidelines. It also no longer requires websites to verify age, a mandate the industry had opposed. However, the bill would create legal liabilities for social media companies if they failed to block users who are 13 or younger.
“What we have done is to make certain it is narrowly tailored, that the enforcement mechanism is with the FTC and with the states’ attorneys general. We made certain that it is focused on the process and the work of these platforms, not on content,” Blackburn said. “This has moved us to the point that we filed this with one-third of the U.S. Senate as original co-sponsors.”
Civil liberties and privacy concerns
The new bill has earned the support of advocacy groups such as the American Psychological Association, American Academy of Pediatrics, Eating Disorders Coalition, Fairplay, Mental Health America, and more. But some tech trade associations and digital rights groups expressed concerns that the changes don’t go far enough and that the bill could undermine free speech and hurt personal privacy.
It’s part of a broader debate about protecting minors from harmful material on the internet that’s been roiling since the Communications Decency Act was enacted in 1996. That law attempted to prevent minors from gaining access to sexually explicit materials on the internet, and many of its provisions were struck down in court.
When it comes to the social media bill sponsored by Blackburn and Blumenthal, “the modifications are not that big in my opinion,” said Joe Mullin, a policy analyst with the Electronic Frontier Foundation.
Mullin and several other groups believe the bill would allow broad content filtering in an effort to limit the access of minors to specific online content. The decisions would be left up to the Federal Trade Commission and 50 individual state attorneys general, which could make political points about what kind of information they deem appropriate for minors.
“They are leaving the content regulation up to attorneys general in 50 states. The thing about this stuff is that it’s just extremely subjective,” Mullin said, emphasizing the bill is ambiguous enough that an attorney general in a conservative state could censor content regarding abortion. Or an attorney general in a liberal state could block content regarding gun ownership, arguing that under the Kids Online Safety Act, it has harmful effects on young people.
“In one of the 50 states, an attorney general would say, ‘You’re hurting kids. You’re violating KOSA, and I’m going to shut you down.’ I think the First Amendment threats are that clear,” he added.
Blackburn disputed these viewpoints and said the proposal would not spur online surveillance or censorship.
“There’s no way it allows the government to dictate the online experience. Because it requires the social media platform to make available to parents and kids the toolbox to, as I term it, ‘protect their virtual you,’ which is their presence online, to tailor the experience on a Snapchat or an Instagram so that it fits for that family and for that child.”
Blumenthal defended the legislation during a press conference and said legal obligations on tech companies had been “very purposefully narrowed” to target certain harms.
“I think we’ve met that kind of suggestion very directly and effectively,” said Blumenthal, a former Connecticut attorney general and U.S. attorney. “Obviously, our door remains open. We’re willing to hear and talk to other kinds of suggestions that are made.”
The legislation has also been criticized by several groups that represent or take funding from social media companies.
“Governments should avoid compliance requirements that would compel digital services to collect more personal information about their users, such as geolocation information and a government-issued identification, particularly when responsible companies are instituting measures to collect and store less data on customers,” said Matt Schruers, president of the Computer and Communications Industry Association, members include Meta, Google, Twitter, and Amazon.
The opposition from the social media giants doesn’t discourage Blackburn.
“We’ve had pushback from the lobbyists since day one since we were working on this. They’ve never been for it because kids are their product,” she said.
“So we had expected that they would fight it. What they did not expect is that this bill would be reintroduced with 33 co-sponsors, original co-sponsors,” Blackburn said. “They know that this is moving. They know that it’s going to get a floor vote. They know that we’ll be able to pass this bill.”
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Blackburn, elected to the Senate from Tennessee in 2018 after 16 years in the House, believes this session, Senate Republican leadership can be convinced of the bill’s merits and back it. Senate Minority Leader Mitch McConnell (R-KY) has voiced some concerns about it.
“We have talked quite a bit with Senate leadership, and we are continuing to work with him,” Blackburn said.
And with Democrats holding a 51-49 Senate edge, “Sen. Blumenthal is working with Democratic leadership to be certain that we’re all moving forward,” Blackburn added.